FAJ v FJH (No. 2) - [2024] QDC 69

DISTRICT COURT OF QUEENSLAND

CITATION:

FAJ v FJH (No. 2) [2024] QDC 69

PARTIES:

FAJ

(Appellant)

v

FJH

(Respondent)

FILE NO:
D9 of 2022

DIVISION:

Criminal

PROCEEDING:

Appeal pursuant to the Domestic and Family Violence Protection Act 2012 (Qld)

ORIGINATING COURT:

District Court, Gympie

DELIVERED ON:

16 May 2024

DELIVERED AT:

Maroochydore

HEARING DATE:

Heard on the papers

JUDGE:

Long SC, DCJ

ORDER:

The parties will be further heard as to the orders to be made in accordance with these reasons.

CATCHWORDS:

DOMESTIC VIOLENCE – Appeal – Costs –Where the appellant succeeded in his appeal – Where the appellant has incurred substantial costs in his legal representation for the appeal – Whether the successful appellant should be compensated for the reasonable costs incurred in achieving that success

LEGISLATION:

Appeal Costs Fund Act 1973 ss 15, 16, 33
Civil Proceedings Act 2011 s 15
Domestic and Family Violence Protection Act 2012 ss 32, 37, 142, 157, 169

Uniform Civil Procedure Rules 1999 rr 681, 766, 785

CASES:

ACJ v AD (No. 2) [2023] QDC 238

COUNSEL:
I Munsie for the appellant
Respondent (self-represented)

SOLICITORS:
Beavon Lawyers for the appellant

By order made on 19 March 2024,[1] the Appellant succeeded in his appeal, by having a protection order made against him under the Domestic and Family Violence Protection Act 2012 (“DFVPA”) set aside, with the Respondent’s application being remitted to be determined pursuant to law.
[1]See: FAJ v FJH [2024] QDC 23.
The Appellant now seeks that the Respondent pays his costs of that appeal, which she unsuccessfully opposed. It is convenient to note that the Respondent, who has not been legally represented in both the proceedings below and on this appeal, urges the court to refrain from making such an order, having regard to the nature of the underlying proceeding under the DFVPA and her contentions that she proceeded under that legislation in good faith in bringing her application and that she would be the subject of intimidation and punishment should the order be made.
It must be recognised that the Respondent’s contentions, as couched in terms of intimidation and punishment of her, are to be put aside as inappropriately misconceived, as it is well recognised that, if available, such an award of costs is made in the nature of compensation for the costs incurred by a successful litigant, rather than by way of punishment of the unsuccessful litigant.[2]
[2]See: Oshlack v Richmond River Council [1998] 193 CLR 72, in particular at [1]-[2], [82] and [125] in reference to Latoudis v Casey (1990) 170 CLR 534.
The entitlement of the Appellant to seek that compensation by payment of costs has been acknowledged on a number of occasions.[3] The essential reasoning lies in understanding that:
(a)the primary rule expressed in s 157(1) of the DFVPA that, subject to limited expressed exceptions, the parties are to bear their own costs, applies to “a proceeding for an application under this Act”, which does not include an appeal brought in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading FAJ v FJH (No. 2)

Details

AGLC: FAJ v FJH (No. 2) [2024] QDC 69
Case: [2024] QDC 69
Decision Date: 16 May 2024

CaseChat Overview and Summary

In the case of FAJ v FJH (No. 2), the appeal before the court involved issues pertaining to domestic violence and the associated legal costs incurred during the proceedings. The appellant, FAJ, sought compensation for the reasonable costs incurred during the appeal, having succeeded in his appeal against the original decision. The court was tasked with determining whether the successful appellant should be awarded compensation for the legal expenses incurred in achieving this success.

The primary legal issue before the court was the appropriate allocation of costs in cases where an appellant succeeds in an appeal. The court had to consider whether the successful appellant should be compensated for the reasonable costs of the appeal, given the circumstances and the outcome of the case. This involved a detailed examination of the costs incurred and the principles governing the awarding of costs in appeals, particularly in matters involving domestic violence.

The court deliberated on the principles and precedents governing the awarding of costs in appeals. It considered the financial burden placed on the appellant and the importance of ensuring just outcomes in cases involving domestic violence. The court found that the appellant had indeed incurred substantial costs and that compensating the appellant for a portion of these costs was warranted to ensure a fair outcome. The court ruled that the successful appellant should be compensated for the reasonable costs incurred in achieving the success of the appeal, subject to further submissions from the parties regarding the precise quantum of the compensation.

Pending the parties' further submissions, the court deferred the final determination of the orders to be made. It instructed that the parties would be further heard to provide their views on the appropriate orders, in light of the court's reasons for compensating the successful appellant for a portion of the costs incurred.

Orders

Orders of the court

The parties will be further heard as to the orders to be made in accordance with these reasons.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	FAJ v FJH (No. 2) [2024] QDC 69
PARTIES:	FAJ (Appellant) v FJH (Respondent)
FILE NO:	D9 of 2022
DIVISION:	Criminal
PROCEEDING:	Appeal pursuant to the Domestic and Family Violence Protection Act 2012 (Qld)
ORIGINATING COURT:	District Court, Gympie
DELIVERED ON:	16 May 2024
DELIVERED AT:	Maroochydore
HEARING DATE:	Heard on the papers
JUDGE:	Long SC, DCJ
ORDER:	The parties will be further heard as to the orders to be made in accordance with these reasons.
CATCHWORDS:	DOMESTIC VIOLENCE – Appeal – Costs –Where the appellant succeeded in his appeal – Where the appellant has incurred substantial costs in his legal representation for the appeal – Whether the successful appellant should be compensated for the reasonable costs incurred in achieving that success
LEGISLATION:	Appeal Costs Fund Act 1973 ss 15, 16, 33 Civil Proceedings Act 2011 s 15 Domestic and Family Violence Protection Act 2012 ss 32, 37, 142, 157, 169 Uniform Civil Procedure Rules 1999 rr 681, 766, 785
CASES:	ACJ v AD (No. 2) [2023] QDC 238
COUNSEL:	I Munsie for the appellant Respondent (self-represented)
SOLICITORS:	Beavon Lawyers for the appellant